Lead Opinion
Paul Lane appeals the district court’s grant of summary judgment to his former employer, the City of Pickerington, Ohio, and Individual Defendants Mitch O’Brien, Michael D. Taylor, and Linda Fersch, on his Fourteenth Amendment procedural due process claims brought under 42 U.S.C. § 1983 and his Ohio common-law defamation claim. Lane asserts he was denied due process of law when he was terminated without a constitutionally sufficient pre-termination hearing and denied a timely post-termination hearing, and asserts that Defendant Taylor published defamatory statements about him. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings.
I.
The district court’s opinion includes the following relevant facts:
On August 30, 1999, Paul Lane began working for Pickerington as a construction inspection supervisor. In 2002, he was demoted to construction inspector. Beginning informally in November 2004 and officially in November 2005, Lane was an inspection administrator.
City manager Tim Hansley was Lane’s boss. Although Lane would call Hansley a friend, they did not see each other often outside the work environment. Hansley was fired October 20, 2009. Shortly before he was fired, Hansley met with Lane and four other employees and told them that the may- or, Mitch O’Brien, wanted him to fire them. Lane believes Hansley was fired because he refused to fire them. Defendant Linda Fersch, Pickerington’s personnel director, told the five not to worry, there were always rumors. Lane testified that Hansley was a good city manager and should not have been fired.
On October 22, 2009, police chief Michael Taylor’s first day as acting city manager, he told Eric Vannatta to search Lane’s computer. Taylor testified that he ordered Lane’s computer searched because “there was a rumor that certain city employees Lane, Steve Carr, and George Parsley were removing erasing public documents from their*459 computers.” He could not recall who he heard the rumor from. He testified, “The rumor was Tim Hansley was saying these people ... were removing public documents from their computers.”
Vannatta suffered a stroke in 2010 that has eliminated his memory of many events over the 25 years before the stroke. He has little recollection of the search. He does not remember what he was searching for or how he used Recu-va software during the search. He does recall burning a copy of pornographic images found on the computer to a CD. Almost all the images were from June 28 and 30, 2005, some four and one-half years before the search. Vannatta wrote a one-sentence October 23, 2009 memo to Taylor: “After using specialized software to retrieve images from Paul Lane’s computer, it was noted that pornographic images were present on the hard drive.”
Several weeks later, Vannatta used Recuva software to inspect George Parsley’s computer. Lane’s and Parsley’s computers were the only two computers Vannatta ever inspected during his career with Pickerington.
Taylor testified that Vannatta told him he found no evidence any public documents were being erased from the searched computers. But Vannatta said he found around 30 pornographic images and “he found numerous sites where sites where — numerous listings on the computer where Paul went to look at pornography.” Taylor further testified that Vannatta said there was a device on the computer that meant that what Lane was doing on the computer didn’t get stored on the hard drive.
City policy prohibits viewing pornography on city computers. The city’s internet guidelines prohibit using a computer to view pornographic, obscene, and sexually oriented images.
At approximately 8:20 a.m. on October 29, 2009, Taylor gave Lane a prediscipli-nary notice of an October 30 prediscipli-nary hearing. Lane was not told that he might be terminated or that he had the right to be represented by an attorney at the hearing.
Taylor held the predisciplinary hearing which began at 10:00 a.m. on October 30, 2009. Personnel director Fersch was present, but did not participate.1 Taylor asked Lane to explain the pornography found on his computer. Lane asked to see the images found on his computer, and Taylor refused to show them to him.2 Lane testified that he told Taylor that' he did not put pornography on the computer.3 He further told Taylor that “if there are any im*460 ages, the only way I am aware there could be any would be from checking my personal email. You open up something from a buddy and it’s an off color joke and a picture of boobs.... I’m not aware of ever opening up any emails on my work computer.”4 Although his computer was password protected for login, Lane testified that anyone could access his computer during the work day because he was often out of his office and his computer was on from 6:00-6:30 a.m. to 5:00-6:00 p.m.
During the hearing, Taylor told Lane he had the option of resigning or being fired. Lane testified that Taylor told him that he could, resign and receive a good recommendation. Lane asked to consider the offer over the weekend. On Monday, Lane told Taylor he would not resign. Taylor testified that he alone made the decision to fire Lane for looking at pornography on a work computer.
On October 30, 2009, probably after the predisciplinary hearing, Taylor asked then Sgt. Gene Delp.to witness Eric Vannatta examine Lane’s computer. Vannatta ran a program to search for deleted files and printed out a list of those files. Vannatta told Delp he was looking for pornography. Delp’s recollection was that Vannatta found some cookies from pornography sites and history of internet visits to those sites.However, he did not include those findings in his report to Taylor, and that type of finding should have been included in the report. Vannatta found U2 software on Lane’s computer, which could have been used to run a web browser and other software without using the computer’s hard drive. A Google Chrome browser was also installed on the computer. That browser would permit the user to browse the internet anonymously without creating any entries on the internet history file.
Delp reported to Taylor that Vannatta found pornographic images that appeared to come from pornographic web sites. Taylor told him to write a summary report. Delp wrote a report either that day or the next. That report reads, in relevant part:
Eric Vannatta provided computer tools which would recover deleted files, and showed me how he had used this software to recover appx. 30 files which indicated the computer had been used to access pornography over the internet. The files were still in the computer’s hard drive, and were again located by the software provided by Eric Vannatta among 42,000 images which had been deleted from the computer. The pornography files were located in the Internet Explorer 5 temporary files and dated in 2005. The location of the files is consistent with files stored during the use of Internet Explorer. This is contrary to the claim from Mr. Lane that the files were delivered to his computer in an email. The history of Internet Explorer was set to save the internet browsing history for 999 days; however the only history on the computer was from the seven days prior to his pre-disciplinary meeting with Chief Taylor. I would conclude that Mr. Lane had cleaned the computer prior to examination by Eric and me.
*461 I also discovered that “U-3” software had been installed on the computer. This software is included on some thumb drives and allows for applications to be run directly from the thumb drive. These applications can include internet browsers, on-line chatting software, video players, etc. and can access the internet without leaving any trace on the computer hard drive. Mr. Lane also had Google Chrome installed on his computer. This program is an internet browser capable of running in “Incognito Mode.” This mode allows the user to browse the internet without saving any history or temporary files to the computer’s hard drive.
On November 5, 2009, Lane picked up from personnel director Fresch a letter terminating his employment. Lane believes he may have been fired because he was perceived to be “too close to Tim” Hansley. Plaintiff has proffered no evidence supporting that speculation.
On November 2, 2009, Taylor issued a letter terminating Lane that was [allegedly] based on false and/or misleading statements made by Fersch and others. On November 17, 2009, Lane submitted a request for hearing before the Personnel Appeals Board. Defendants notified plaintiff that he was not a classified employee and that the PAB did not have jurisdiction over his appeal. Lane was [allegedly] denied his right to due process because defendants failed to comply with the Section 9.0B of Pickerington City Ordinances. Defendants [allegedly] violated their clear duty to provide Lane with post-deprivation due process to conduct a hearing and to issue a determination on the merits of his appeal.
Lane testified that he was defamed by a newspaper article that said he admitted possession of pornography and because “I was on 10TV.”
On December 4, 2009, Taylor wrote a letter to the Ohio Bureau of Unemployment Compensation in response to a question asking for “additional information you might have significant to the separation.” The letter stated, in relevant part:
When Paul’s computer was checked, it was determined there was 40,000' “hits” on the computer where he went to the Internet looking at various things and approximately 30 pictures were pornographic. When questioned, Paul admitted to looking at the pictures but stated that he was just checking his home E-mail at work, and when he opened the mail, it was determined to be pornographic. (30 different times?) If so, why not erase from the computer once determined? Also, he was using different software to access the sites (to avoid a record on the hard drive), which was not authorized. It was determined later this was not accurate, as the site had to be directly accessed, see enclosed print out of the internet site and photo.
Additionally, in regards to sexual harassment with other employees. He made comments alleged about masturbation to a female employee, made an alleged sexual comment to another employee her breasts [sic], and was allegedly changing his pants in his office with the door opened and was witnessed by yet another female, and his comment was it was ok, I have boxer shorts on.
Paul also made for somewhat of an uncomfortable, nonconducive work atmosphere. He allegedly would*462 change into exercise clothes while at work, he pushed open the bathroom door of the men’s room to witness other men going to the restroom. He allegedly invaded the female employees’ personal space by walking right up to them or walking up behind them.
I interviewed several different employees and received the same comments about Paul Lane. He would leave the office, stay gone for hours at a time, not come in until late and not advise anyone. It was difficult to schedule appointments, as the secretary would not know where he was or when he would be in many times. I also determined no one really knew what he did for a job. I questioned 5-6 people and they couldn’t advise what he really did. Although he was the “Building Administrator” he did very few if any administrative duties.
As for prior discipline, he received none due to the two past city managers would not administer discipline. Numerous complaints were taken to the two previous city managers and no action was taken, not even any documents in his file.
Upon initial complaints about Paul, I found them to be sustained. The female workers were on edge, and felt very uncomfortable working with him. One female employee was so concerned, she felt she should go outside and around the building through the back door to the restroom to avoid walking past his office.
After talking to numerous people, I determined there was a atmosphere created by Paul that was non conducive to a good working environment. Changing clothes in an office that was witnessed by female employees, making sexual comments to a female employee, invading personal space, making comments about a female’s breasts to her, all this hardly constitutes a health [sic] work environment. I consider the city fortunate a sexual harassment suit was not imposed by the female workers of the city due to lack of action on two prior city managers’ actions.
The Notice of Predisciplinary Conference states that the alleged offense was “Violation of Technology, Section 2; unacceptable and personal use,” and the summary of charges states “Prohibited use of the internet viewing and retaining of pornographic materials on city computer. Misuse of city property in an inappropriate and offensive manner.”
On December 1, 2009, Phillip Hartmann, the Law Director of the City of Piekering-ton, responded to Lane’s request for a hearing before the Personnel Appeals Board with a letter stating that Lane was an unclassified employee and the Personnel Appeals Board had no jurisdiction to hear his appeal.
The district court granted summary judgment in favor of the City of Pickering-ton and the Individual Defendants.
II.
This court reviews de novo a district court’s decision to grant summary judgment. Rudisill v. Ford Motor Co.,
III.
A.
Lane argues the district court erred in granting summary judgment on his claims of pre- and post-deprivation due process. The district court held that Lane failed to plead predeprivation due process allegations in his complaint, finding that the facts in Lane’s complaint address only post-deprivation due process. We disagree.
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly,
B.
To succeed on his pre-deprivation and post-deprivation due process claims, Lane must show that he has a liberty or property interest in his job and that Defendants failed to provide sufficient process in depriving him of that interest. Fields v. Benningfield,
1.
“In the context of employment rights, the Supreme Court has explained that ‘the root requirement of the Due Process [Cjlause’ is ‘that an individual be given the opportunity for a hearing before he is deprived of any significant property interest.’ ” Mitchell,
Pre-termination- hearings “need not be elaborate.” [Loudermill,470 U.S. at 545 ,105 S.Ct. 1487 ]. “The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” [Id. at 546,105 S.Ct. 1487 ], This “initial check against mistaken decisions” is all that is necessary where an employee is provided with a full post-termination hearing. [Id. at 545,105 S.Ct. 1487 ]; Brickner v. Voinovich,977 F.2d 235 , 237 (6th Cir.1992) (“The Supreme Court has held that, depending on the circumstances, a pre-termination hearing, although necessary, may not need to be elaborate, as long as the plaintiff is entitled to a full hearing with the possibility of judicial review at the post-termination stage.”). Post-termination hearings, on the other hand, “serve to ferret out bias, pretext, deception and corruption by the employer in discharging the employee.” Duchesne v. Williams,849 F.2d 1004 , 1008 (6th Cir.1988).
Mitchell,
Lane was denied adequate pre-de-privation due process. Under Loudermill, a predeprivation hearing must include an explanation of the employer’s evidence. Lane was denied the opportunity to see the photographs he was accused of viewing and retaining, depriving him of a “meaningful opportunity to tell his side of the story.” Loudermill,
Our conclusion that Lane was not pro- ' vided with a constitutionally adequate pre-termination hearing is unaffected by the post-termination process Lane received. See Loudermill,
The parties dispute the application of Parratt v. Taylor,
In the subsequent case of Logan v. Zimmerman Brush Co.,
This court has applied Parrott’s rule inconsistently in two “parallel but contradictory” lines of authority. Mitchell,
2.
Lane asserts that his post-deprivation hearing violated due process as well because it was untimely. “The Due Process Clause requires provision of a hearing at a meaningful time.” Loudermill,
In determining how long a delay is justified in affording a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken.
Id. (citing Logan,
The parties do not dispute that a public employee’s continued employment is an important private interest. Defendants
Lane filed a complaint for a writ of mandamus in the Ohio Fifth District Court of Appeals in 2010 to compel the City of Pickerington and the Personnel Appeals Board to conduct a hearing on the charges against him and provide the opportunity to obtain a final appealable order. The court of appeals granted the City’s motion for summary judgment. On October 27, 2011, the Ohio Supreme Court held that the court of appeals erred in denying the writ because Lane did not have an adequate remedy by way of administrative appeal in the absence of a final, appealable order from the Personnel Appeals Board, and remanded to the court of appeals to determine whether Lane could establish entitlement to the writ. On January 27, 2012, the court of appeals issued the writ ordering the Personnel Appeals Board to issue an order addressing Lane’s hearing request. Following that mandate, the Board determined that Lane was entitled to a hearing on the merits since it found that he was a classified employee. Lane does not argue that Defendants unconstitutionally delayed his post-deprivation process following the issuance of the writ. Further, defendants were entitled to rely on the Ohio Fifth District Court of Appeals’ initial denial of relief. The delay was not unreasonably prolonged because Lane’s right to a post-deprivation hearing was not determined until the Ohio Supreme Court and the Fifth District Court of Appeals on remand issued their opinions, two years after the termination. See Loudermill,
This would be a different case if we were dealing with an instance in which the delay was not occasioned by pending litigation. Although a plaintiff need not demonstrate the inadequacy of unexhausted state processes in order to bring an action under § 1988 where a deprivation is caused by established state procedure, see Mitchell,
C.
The City of Pickerington argues that notwithstanding any due process deprivation, we must affirm the grant of summary judgment in its favor because Monell v. New York City Department of
D.
The Individual Defendants O’Brien, Taylor, and Fersch argue that they are entitled to qualified immunity, which protects government officials performing discretionary functions from civil liability under § 1983 unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
E.
Lane has failed to allege a sufficient Ohio common-law defamation claim. First, the district court correctly found that the only defamation allegation pleaded in Lane’s complaint was based on false and misleading information in Taylor’s letter terminating Lane’s employment. Even assuming other allegedly defamatory statements made by Taylor are properly before this court, the claim is barred by qualified privilege.
“A qualified privilege may be defeated only if a claimant proves with convincing clarity that the publisher acted with actual malice.” Jackson v. City of Columbus,
Lane has failed to show that Taylor’s statements were false or made with reckless disregard of their falsity. First, Taylor’s statement that Lane admitted to looking at pornography on city computers was substantiated by Lane’s deposition testimony that “if there are any images, the only way I am aware that there could be any would be from checking my personal email. You open up something from a buddy and it’s an off-color joke and a picture of boobs.... I’m not aware of ever opening up any emails on my work computer.” In an investigation summary from Sgt. Matt Delp and in a memorandum from Eric Vannatta, who were charged with searching Lane’s computer, the material on Lane’s computer was described as pornographic, and there is no dispute that there were approximately thirty pictures on Lane’s computer that Taylor viewed as pornographic. Moreover, the search of Lane’s computer revealed that the “pornographic” images on the hard drive had been accessed by going to a website, not via email, and that software had been installed on the computer to allow Internet browsing without leaving any trace on the computer hard drive.
Taylor’s statement that Lane created a hostile working environment was substantiated by Lane’s own testimony, admitting that he participated in conversations about naming women’s breasts and telling a masturbation joke, and that he told a woman wearing a shear blouse that he could see her nipples. Further, Taylor received four statements from female employees complaining of sexual harassment by Lane. Among these was a statement from a woman saying that she observed a copy of a Playboy article on sex and sexuality left on the copier that was later picked up by Lane. Taylor testified that this is what he was referring to when he stated that Lane’s viewing of pornography created a hostile work environment.
Finally, the district court correctly noted that a newspaper article written by Nate Ellis states: “Taylor declined to elaborate on the alleged material but disagreed with Lane’s assertions,” and only attributes one statement to Taylor: “Clearly, it was pornographic.” Lane has failed to show that Taylor made the allegedly defamatory statements with “a high degree of awareness of their probable falsity” or entertained serious doubts as to the truth of his publication. Thus, the qualified privilege applies.
IV.
We AFFIRM the district court’s grant of summary judgment to Defendants on Lane’s post-deprivation due process claim and his Ohio defamation claim, REVERSE the award of summary judgment to Defendants on Lane’s pre-termination due process claim, and REMAND for further proceedings consistent with this opinion.
Notes
. The district court noted: "Fersch testified that Taylor did not ask for her opinion and she did not volunteer an opinion about whether Lane should be fired. She did recommend that he talk to the city’s employment counsel."
. The district court noted: “The first time Lane saw the images was after he made a public records request. Taylor agrees that he did not provide the images to Lane, but he further testified that Lane did not ask for them during the hearing. In contrast, Fersh testified that Lane asked to see the allegedly pornographic images and that Taylor said, T can’t do that.’ ” For purposes of summary judgment, the district court assumed Lane asked to see the images.
.The district court noted: "Linda Fersch also testified that Lane denied the pornography was his. However, she believed Lane 'backpedaled when he later on said that he could have accidentally opened something.' Fersch testified that when first asked about pornography, Lane ‘sort of laughed it off, like this is ridiculous, you know.’ 'And later on in the conversation, though, he did say he might have accidentally opened an e-mail, but he couldn't control what people sent him....' "
. The district court noted: "Taylor's testimony differs. He recalls Lane saying he pulled up his home email on his work computer 'and it would be on the site.’ That is, he ‘recalled pulling up the sites.’ Taylor did testify that Lane denied going to a website to view pornography.” For the purposes of summary judgment, the district court accepted Lane’s testimony.
. The letter states:
Pursuant to Charter Section 9.02 and 9.03, the PAB rules and the Codified Ordinances of the City, the position you previously held as the Director of the Building Department is an exempt position and therefore considered unclassified. The PAB does not have jurisdiction to hear an appeal from an unclassified employee regarding dismissal. Therefore, the City respectfully declines your request for a hearing before the PAB.
. At oral argument, Defendants explained that if they are not successful in their appeal, Lane will be entitled to back pay. If back pay is not provided, Lane must rely on an internal process.
. Citing Collyer v. Darling,
. The dissent also concludes Lane received adequate notice of the sexual harassment charges. Because Pickerington argues in its brief, citing Taylor’s testimony, that the pre-disciplinary conference “dealt with the technology policy violations, not the sexual harassment allegations,” summary judgment is inappropriate. Pickerington Br. 23.
. Taylor testified that he was the sole decision-maker and based his decision solely on the pornography offense. Taylor further testified that he did not raise any sexual harassment charge with Lane during Lane’s pre-deprivation hearing. In contrast, Lane testified that Taylor did state at the pre-disciplin-ary hearing that “there’s also been allegations of sexual harassment in your workplace,” mentioning Lane’s conversation about masturbation, which at the time Lane did not recall. Lane testified that "[a]t that point, I put my hands up and said, ‘I don’t even talk to those girls,' ” and told Taylor that allegations of sexual harassment needed to be on the pre-disciplinary notice.
. The City raised Monell in response to Lane's motion for summary judgment. It did not assert it as a ground for granting its own motion for summary judgment.
Dissenting Opinion
dissenting.
I concur in the majority’s dismissal of the post-deprivation and defamation
The majority provides two reasons to support its conclusion that Lane was denied predeprivation due process. First, the majority claims that Lane was deprived of an explanation of his employer’s evidence and of a meaningful opportunity to tell his side of the story because “Lane was denied the opportunity to see the photographs he was accused of viewing and retaining.” Maj. Op. at 464.
In the employment context, pre-deprivation due process requires simply “an explanation of the employer’s evidence,” as well as “an opportunity to present [the employee’s] side of the story.” Cleveland Bd. of Educ. v. Loudermill,
The majority finds error because Taylor refused Lane’s request to view the images allegedly found on his computer. But Loudermill does not require production of evidence. Collyer v. Darling,
As regards Dr. Lingl’s report, Louder-mill and its progeny do not require any more than adequate explanation of the reasons for the employer’s action. Thus, it was sufficient for the BDC to inform Collyer that he was being “suspended” because the doctor determined him unfit due to a mental condition.
Id. (emphasis added).
Just as a general description of Dr. Lingl’s finding provided Collyer with a sufficient explanation of the evidence against him and an opportunity to respond, Taylor’s general statement that pornography was found on Lane’s computer similarly provided Lane with a sufficient explanation of the evidence against him and an opportunity to respond.
The majority also reasons that Lane’s pre-deprivation due process was deficient because Lane “was not notified of any sexual-harassment or hostile-work-environment charges.” Maj. Op. at 465. The “Notice of Predisciplinary Conference” Lane received listed the charges as (1) prohibited use of the internet to view and retain pornography, and (2) misuse of city property in an inappropriate and offensive manner. The majority, however, focuses on written statements Taylor made in a termination memorandum to the State of Ohio and a letter to the Ohio Bureau of Employment Compensation after the pre-diseiplinary conference. Those statements suggested that Taylor terminated Lane’s employment because Lane’s sexually harassing conduct created a hostile work environment. Maj. Op. at 465.
In addition to an explanation of the employer’s evidence and an opportunity for the employee to present his or her side of the story, pre-deprivation due process requires “oral or written notice of the charges against [-the employee].” Loudermill,
Although Lane’s written “Notice of Predisciplinary Conference” listed only the charges related to viewing pornography on a work computer, .during Lane’s predisciplinary conference, Taylor further explained, “Paul, there’s also been allegations of sexual harassment in your workplace,” and Taylor specifically referenced an alleged conversation about masturbation that Lane had with a female employee. Lane responded to those charges, telling Taylor that he did not even speak with those employees alleging sexual harassment and that he had no knowledge about a conversation involving masturbation. In other words, Taylor gave Lane oral notice of the sexual harassment allegations at the pre-deprivation hearing, and Lane utilized the conference as an opportunity to respond to those allegations.
Thus, Lane’s pre-deprivation hearing easily satisfied Loudermill and the law of the Sixth Circuit. A comparison with two
The Sixth Circuit reached a similar conclusion in Morrison v. Warren. Deputy Sherriff Timothy Morrison was accused of domestic abuse by his wife, who obtained a civil protection order against Morrison. Morrison,
Furthermore, nothing in the record suggests that Lane was actually terminated because of those sexual harassment allegations. Taylor mentioned the sexual harassment allegations once at the hear
In short, because I believe that Lane received adequate pre-deprivation due process in accordance with Loudermill and the law of this circuit, I dissent.
. The majority attempts to distinguish Collyer, arguing that Lane’s situation is different because (1) the evidence against Lane was "stale,” (2) the written notice provided to
. The majority holds that summary judgment was inappropriate on the issue of whether Lane received notice of those sexual harassment allegations because in its brief Pickerington states that the predisciplinary conference dealt with the technology policy violations, not the sexual harassment allegations. Maj. Op. at 465 n. 8. The fact that the predisciplinary conference "dealt with” the technology policy violations does not imply that the sexual harassment allegations were never mentioned. Indeed, in his deposition, Lane stated that Taylor said, "Paul [Lane], there’s also been allegations of sexual harassment in your workplace,” and "mentioned something about [how Lane] had a conversation about masturbation or masturbating with one of the [female employees].” Thus, summary judgment was appropriate because Lane received oral notice of those charges.